We are a Principle Contractor for maintenance / construction works and we have recently started delivering an NEC3: TSC contract under Option ‘A’ with a price list.
The site works that falls out side of the scope of the current ‘price-list’ is put out as an open-market mini-tender in line with 52.1. A minimum of three quotations are issued to the Service Manager (which are all formatted into our own spreadsheet).
The Service Manager has now requested to see the original copies of quotations as he needs to show value for money.
His view is that contract is “open book” (a bit like Option C) and is causing us some difficulties.
However, my understanding is that under Option A, there are no requirements (nor z clauses) for us to disclose this information?
Is a Term Service Contract under option A an open book or close book contract?
It doesn’t; sound like either the Service Manager or the Contractor are acting in accordance with the contract here.
If the Service Manager wants you to do work / service that is not described in the Service Information he needs to give you an instruction in accordance with clause 14.3 which you are obliged to obey under clause 27.3.
Any work / service that you are instructed to do by the Service Manager that isn’t part of the original Service Information is dealt with as a compensation event under clauses 60, 61, 62, 63 and 64.
What you should have done is submit a quotation under clause 62.3, based on the requirements at clause 63.2 i.e. based on Defined Cost plus Fee. You are right that clause 52.1 is then relevant.
I’d suggest that you contemplate on clause 10.1 act as stated in the contract AND in a spirit of mutual trust and co-operation. Do you think the Service Manager’s request is unreasonable? Are you trying to hide something? How do you demonstrate that the Defined Cost you’ve included in your quotation is at open market or competitively tendered prices without disclosing the quotations? You could refuse to disclose, however if I were your Service Manager it would make me very suspicious of you and undermine mutual trust and co-operation! If you’ve gilded the lily in your quotation, better to come clean now and just say you didn’t understand how the contract worked. I’m guessing you’re attempting to recover monies under the quotation that you aren’t entitled to?!
You are correct. Any works falling outside the scope of the service information is treated as a CE and priced in accordance with the clauses.
So basically the stance is that the contract isn’t open book per se. BUT. You may want to pass on such information in a spirit of co-operation so as to not undermine any trust (cl 10.1).
Surely the Employer knew what they were doing when they tendered the contract out as option A and placed all risk upon the incumbent Contractor? If they really wanted to see the quotations a simple Z clause, inserting 52.2 & 52.3 would of done the trick?
p.s no lilies were gilded in the formulation of this response
